State of Rajasthan and anr. Vs. Naresh Kumar Saxena - Court Judgment

Excerpt:
rajasthan mines and geological service rules 1960 as amended in 1977 - schedule i-col. 5, item 3--petitioner's writ allowed by single judge--state's special appeal dismissed by division bench--hence this review petition by state--error apparent on the face of record--special appeal dismissed considering position of rules of 1960 which stood prior to amendment of 1977, hence review petition allowed--order passed in special appeal quashed and special appeal restored to its original number for hearing on merits.;review petition allowed - - it has furlher been argued that the division bench has failed to appreciate thai the respondent could not have been promoted on the post of assistant mining engineer, merely on the basis of holding the posl of mining foreman grade ii substantively.orderlakshmanan, c.j.(1). heard counsel for both the parties.(2). this review petition has been filed by the state of rajasthan and the director, department of mines & geology, governmenl of rajasthan against the order dated 15th may, 1997, passed by the division bench of this court in d.b. special appeal (writ) no. 792/1995 and the order dated 5.10.1995, passed by the learned single judge in s.b. civil writ petition no. 6359/1994.(3). we have perused the orders, passed by the learned single judge and the learned judges of the division bench.(4). the writ petition filed by the respondent-herein was allowed by the learned singlt judge by order dated 5.10.1995, on the ground that since the respondent-herein had been holding the post of certified surveyor on adhoc basis for over 15 years, hecould not be put to disadvantageous position because the said post was declared to be a dying cadre. the learned single judge has further observed that had the post of certified surveyor continued, he would have been entitled for promotion on the post of certified mines foreman from the post of mines foreman gr. ii and considering a long time experience, the petitioner should have considered the case of the respondent for promotion to the post of assistant mining engineer in accordance with the rules of 1960. accordingly, the learned single judge directed that the case of respondent be considered for promotion on the post of assistant mining engineer.(5). the petitioner-department herein preferred a special appeal against the aforesaid order passed by the learned single judge, but the special appeal stood dismissed by the division bench by order dated 15th may, 1997. while dismissing the special appeal, learned judges of the division bench while quoting item no. 3 (i) assistant mining engineer (ii) assistant mining engineer (recovery) the schedule-1 of the rajaslhan mines and geological service rules, i960 have observed that the holder of any post in the subordinate mines and geological service carrying scale of pay identical or higher than mines foreman gr. ii is entitled for promotion on the above post of assistant mining engineer and since the respondent herein was substantively holding the post of mines foreman grade ii and he has worked on adhoc basis on the posl of certified surveyor for sufficiently long period of 15 years, he was entitled for consideration for promotion to the post of assistant mining engineer.(6). the rules of i960 were amended vide notification no.f.l (108)khan/gr.lll/74 dated 20.5.1977 as rajasthan mines and geological services (amendment) rules, 1977 wherein schedule i and ii have also been amended. in the schedule i under item no.3 (i) assistant mining engineer (ii) assistant mining engineer (recovery) the post or posts from which appointment by promotion is to be made, the words in column 5 '3. any post in the subordinate mines and geological service carrying scale of pay identical or higher than mines foreman gr. ii' has been substituted as 'any post in the subordinate mines and geological service carrying scale of pay identical or higher than mines foreman gr. i.'(7). the correctness of the judgment passed-by the division bench is questioned in the present review petition. according to mr. kk sharma, learned counsel for the petitioner-department, the judgment of the division bench suffers from error apparent on the face of record. our attention was drawn to the relevant rules of 1960, quoted by the division bench in its judgment at page no. 3. column no.5 of item no. 3 under schedule-1 of the rules of 1960 as extracted in the judgment dated 15.5.1997 reads as under:-' 1. mines foreman gr.i 2. head draftsman 3. any post in the subordinate mines and geological service carrying scale of pay identical or higher than mines foreman, gr. ii.'(8). our attention was also drawn at s.no, 3 under heading 'assistant mining engineer' to schedule-1 at page 230 of the rajasthan law times 1977, wherein column no. 5 of item no.3 of the schedule i reads as under:-' 1. mines foreman gr.i. 2. head draftsman 3. any post in the subordinate mines and geological service carrying scale of pay identical or higher than mines foreman, gr.i.'(9). shri sharma has contended that the judgment of the division bench suffers from error apparent on the face of record, which calls for review. it has furlher been argued that the division bench has failed to appreciate thai the respondent could not have been promoted on the post of assistant mining engineer, merely on the basis of holding the posl of mining foreman grade ii substantively. it has also been argued thatsince the respondenl was working on the post of certified surveyor purely on adhoc basis, the respondent could not have been considered for substantive appoinlmen! on the post and there was no other aiternalive but to sending him back to the post of mines foreman grade-11.(10). on the other hand, learned counsel for the respondent mr. mahendra singh submitted that the arguments put forward by mr. kk sharma, counsel for the petitioner have no merit and that the division bench has rightly dismissed the appeal filed by the petitioner-department, by considering the case of the respondent in the right perspective and on the basis of the rules relied upon by them as extracted in the judgment. in support of his contention, learned counsel for the respondent placed before us a publication printed at the government press, jodhpur and issued by the department of personnel & administrative reforms (administrative reforms grovip-vii), government of rajasthan, corrected up to 30th june, 1978. learned counsel for the respondent invited our attention to item no. 3, column 5 of schedule-1 at page no. 32 of the said rules of 1960, which provides as under:-'1. mines foreman gr. 1 2. head draftsman 3. any post in the subordinate mines and geological service carrying scale of pay identical or higher than mines foreman, gr. ii.'(11). we are unable to appreciate the submissions made by mr. mahendra singh, learned counsel for the respondent. the whole arguments put forward by learned counsel for the respondent are based on the publication printed at government press, as referred above.(12). the petitioner-department in this review petition has placed before this court the original gazette, extraordinary dated may, 20, 1977. we have perused the relevant column. in column 5, foreman grade-1 alone has been printed. even though, the publication of the same, as printed at government press, jodhpur, issued by the authority was placed before us, we prefer to refer to the rajasthan gazette, wherein it has been correctly printed, as has been appended by the petitioner-department in the present review petition. the slate government has issued a notification on 20th may, 1977, by which il notified the rajasthan mines and geological services (amendment) rules, 1977. the said notification was published in the rajasthan gazelle on 20th may, 1977, at part i of g.s.r. 20 from page 71 to 78. the said original gazettee has been marked as annexurc-1 to the present review petition. in the said gazelle notification, at serial no. 3 of the heading 'mining wing', the post of assistant mining engineer has been mentioned. in column of the said serial no.3, the post of mines foreman gr. i has been mentioned, which reads as under:-' 1. mining foreman gr. i 2. head draftsman 3. any posi in the subordinate mines and geological service carrying scale of pay identical or higher than mines foreman gr. 1.'(13). in view of annexure-a-1, the rajasthan gazelle in original placed on record with the present review petition by the petitioner department, we have to hold lhal the hon'ble judges of the division bench have placed reliance on the mis-printed notification. it has rightly been pointed out by mr. kk sharma, learned counsel for the petilioner lhal a mistake is ihere apparent on the face of record, which requires this division bench to interfere with the judgment dated 15.5.1997. in some books, the column no. 5 has wrongly been printed as mines foreman grade-11 in-stead of mines foreman grade-1, it is for the state government to rectify this error at an early dale.(14). under this silualion, we are of the view that the reliance made by the division bench on the mis-printed material placed before the division bench, has been wrongly relied on and, therefore, the judgment is liable to be interfered with. accordingly, we do so and set aside the judgment dated 15.5.1997 passed by the learned division bench and restore the special appeal to its original number.(15). the registry is directed to post the d.b. special appeal (writ) no. 792/1995) before a division bench for hearing on merits.(16). lt is submitted by mr. mahendra singh, learned counsel for the respondent that the respondent has filed another writ petition no. 5-16/1998, naresh kumar saxena vs. state of rajasthan. raising the question of eligibility for promotion. the office is directed to post this writ petition along with the d.b. special appeal (writ) no. 792/1995 for a joint hearing.

Judgment:
ORDER

Lakshmanan, C.J.

(1). Heard counsel for both the parties.

(2). This Review Petition has been filed by the State of Rajasthan and the Director, Department of Mines & Geology, Governmenl of Rajasthan against the order dated 15th May, 1997, passed by the Division Bench of this Court in D.B. Special Appeal (Writ) No. 792/1995 and the order dated 5.10.1995, passed by the learned Single Judge in S.B. Civil Writ Petition No. 6359/1994.

(3). We have perused the orders, passed by the learned Single Judge and the learned Judges of the Division Bench.

(4). The writ petition filed by the respondent-herein was allowed by the learned Singlt Judge by order dated 5.10.1995, on the ground that since the respondent-herein had been holding the post of Certified Surveyor on adhoc basis for over 15 years, hecould not be put to disadvantageous position because the said post was declared to be a dying cadre. The learned Single Judge has further observed that had the post of Certified Surveyor continued, he would have been entitled for promotion on the post of Certified Mines Foreman from the post of Mines Foreman Gr. II and considering a long time experience, the petitioner should have considered the case of the respondent for promotion to the post of Assistant Mining Engineer in accordance with the Rules of 1960. Accordingly, the learned Single Judge directed that the case of respondent be considered for promotion on the post of Assistant Mining Engineer.

(5). The petitioner-department herein preferred a Special Appeal against the aforesaid order passed by the learned Single Judge, but the Special Appeal stood dismissed by the Division Bench by order dated 15th May, 1997. While dismissing the Special Appeal, learned Judges of the Division Bench while quoting item No. 3 (i) Assistant Mining Engineer (ii) Assistant Mining Engineer (Recovery) the Schedule-1 of the Rajaslhan Mines and Geological Service Rules, I960 have observed that the holder of any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman Gr. II is entitled for promotion on the above post of Assistant Mining Engineer and since the respondent herein was substantively holding the post of Mines Foreman Grade II and he has worked on adhoc basis on the posl of Certified Surveyor for sufficiently long period of 15 years, he was entitled for consideration for promotion to the post of Assistant Mining Engineer.

(6). The Rules of I960 were amended vide Notification No.F.l (108)Khan/Gr.lll/74 dated 20.5.1977 as Rajasthan Mines and Geological Services (Amendment) Rules, 1977 wherein Schedule I and II have also been amended. In the Schedule i under item No.3 (i) Assistant Mining Engineer (ii) Assistant Mining Engineer (Recovery) the post or posts from which appointment by promotion is to be made, the words in column 5 '3. Any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman Gr. II' has been substituted as 'Any post in the subordinate Mines and Geological service carrying Scale of pay identical or higher than Mines Foreman Gr. I.'

(7). The correctness of the judgment passed-by the Division Bench is questioned in the present Review Petition. According to Mr. KK Sharma, learned counsel for the petitioner-department, the judgment of the Division Bench suffers from error apparent on the face of record. Our attention was drawn to the relevant Rules of 1960, quoted by the Division Bench in its judgment at page No. 3. Column No.5 of item No. 3 under Schedule-1 of the Rules of 1960 as extracted in the judgment dated 15.5.1997 reads as under:-

' 1. Mines foreman Gr.I

2. Head Draftsman

3. Any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman, Gr. II.'

(8). Our attention was also drawn at S.No, 3 under heading 'Assistant Mining Engineer' to Schedule-1 at page 230 of the Rajasthan Law Times 1977, wherein Column No. 5 of item No.3 of the Schedule I reads as under:-

' 1. Mines foreman Gr.I.

2. Head Draftsman

3. Any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman, Gr.I.'

(9). Shri Sharma has contended that the judgment of the Division Bench suffers from error apparent on the face of record, which calls for review. It has furlher been argued that the Division Bench has failed to appreciate thai the respondent could not have been promoted on the post of Assistant Mining Engineer, merely on the basis of holding the posl of Mining Foreman Grade II substantively. It has also been argued thatsince the respondenl was working on the post of Certified Surveyor purely on adhoc basis, the respondent could not have been considered for substantive appoinlmen! on the post and there was no other aiternalive but to sending him back to the post of Mines Foreman Grade-11.

(10). On the other hand, learned counsel for the respondent Mr. Mahendra Singh submitted that the arguments put forward by Mr. KK Sharma, counsel for the petitioner have no merit and that the Division Bench has rightly dismissed the appeal filed by the petitioner-department, by considering the case of the respondent in the right perspective and on the basis of the Rules relied upon by them as extracted in the judgment. In support of his contention, learned counsel for the respondent placed before us a publication printed at the Government Press, Jodhpur and issued by the Department of Personnel & Administrative Reforms (Administrative Reforms Grovip-VII), Government of Rajasthan, corrected up to 30th June, 1978. Learned counsel for the respondent invited our attention to Item No. 3, column 5 of Schedule-1 at page No. 32 of the said Rules of 1960, which provides as under:-

'1. Mines foreman Gr. 1

2. Head Draftsman

3. Any post in the Subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman, Gr. II.'

(11). We are unable to appreciate the submissions made by Mr. Mahendra Singh, learned counsel for the respondent. The whole arguments put forward by learned counsel for the respondent are based on the publication printed at Government Press, as referred above.

(12). The petitioner-department in this review petition has placed before this Court the original Gazette, Extraordinary dated May, 20, 1977. We have perused the relevant column. In column 5, Foreman Grade-1 alone has been printed. Even though, the publication of the same, as printed at Government Press, Jodhpur, issued by the authority was placed before us, we prefer to refer to the Rajasthan Gazette, wherein it has been correctly printed, as has been appended by the petitioner-department in the present review petition. The Slate Government has issued a Notification on 20th May, 1977, by which il notified the Rajasthan Mines and Geological Services (Amendment) Rules, 1977. The said Notification was published in the Rajasthan Gazelle on 20th May, 1977, at part I of G.S.R. 20 from page 71 to 78. The said original Gazettee has been marked as Annexurc-1 to the present Review Petition. In the said Gazelle Notification, at serial No. 3 of the Heading 'Mining Wing', the post of Assistant Mining Engineer has been mentioned. In column of the said serial No.3, the post of Mines Foreman Gr. I has been mentioned, which reads as under:-

' 1. Mining Foreman Gr. I

2. Head Draftsman

3. Any posi in the Subordinate Mines and Geological service carrying Scale of pay identical or higher than Mines Foreman Gr. 1.'

(13). In view of Annexure-A-1, the Rajasthan Gazelle in original placed on record with the present Review Petition by the petitioner department, we have to hold lhal the Hon'ble Judges of the Division Bench have placed reliance on the mis-printed Notification. It has rightly been pointed out by Mr. KK Sharma, learned counsel for the petilioner lhal a mistake is Ihere apparent on the face of record, which requires this Division Bench to interfere with the judgment dated 15.5.1997. In some books, the column No. 5 has wrongly been printed as Mines Foreman Grade-11 in-stead of Mines Foreman Grade-1, It is for the State Government to rectify this error at an early dale.

(14). Under this silualion, we are of the view that the reliance made by the Division Bench on the mis-printed material placed before the Division Bench, has been wrongly relied on and, therefore, the judgment is liable to be interfered with. Accordingly, we do so and set aside the judgment dated 15.5.1997 passed by the learned Division Bench and restore the Special Appeal to its original number.

(15). The Registry is directed to post the D.B. Special Appeal (Writ) No. 792/1995) before a Division Bench for hearing on merits.

(16). lt is submitted by Mr. Mahendra Singh, learned counsel for the respondent that the respondent has filed another writ petition No. 5-16/1998, Naresh Kumar Saxena vs. State of Rajasthan. raising the question of eligibility for promotion. The office is directed to post this writ petition along with the D.B. Special Appeal (Writ) No. 792/1995 for a joint hearing.